Stephen Bainbridge's Journal of Law, Religion, Politics, and Culture

08/05/2011

Chicago Law Review Chutzpah

I got an email from the University of Chicago law review yesterday, which I'm going to quote in pertinent part:

I’m writing to you today on behalf of the University of Chicago Law Review to solicit your help in a new initiative. The Law Review has recently made a provisional decision to join a number of our peer journals in incorporating faculty peer review into our article selection process. We are inviting a select group of academics to comment on the scholarly merit and originality of select articles in their scholarly discipline. The Articles Group will use these comments to supplement our discussion of articles under consideration for publication.

Either the student-edited format makes sense or it doesn't. The whole purpose of peer review is to get students OUT of the process, not to supplement a decision that would remain in the hands of second and third year law students. A pure peer review/edit system has several advantages. First, more informed and experienced decision makers should make better decisions. Second, one key function of peer review is to provide expert advice at a stage at which the authors can still tweak the paper. Hence, the advice should go directly from the reviewer to the author, rather than being mediated through students. Third, making the decision dependent on peer review provides a strong incentive for authors to heed the advice and to improve the paper. Giving students final say means the author is incented to make the students editors happy rather than the more knowledgeable reviewer. Finally, leaving the final decision in the hands of students means that the reviewer has less incentive to provide his/her best analysis, since his recommendations presumably will not be conclusive and may not even impact the final product. The proposed Chicago system being neither fish nor fowl, there is no reason to think it will combine the best attributes of peer and student journals. To the contrary, for the reasons just noted, I suspect it will combine their worst.

Back to the email:

Please don’t hesitate to let me know if you are unable to review today’s article, but would like to review for us in the future.

Why on earth would I ever want to review an article for them? To be sure, there are things one supposedly does for free for other law schools because they are for the good of the profession. Writing tenure letters springs to mind. Yet, while doing so is for the good of the profession, it can also be personally beneficial. If I write a tenure review letter for your tenure committee, the members of that committee will feel obliged to return the favor when I'm chairing our tenure committee and need outsider reviewers. Professors at other schools read my brilliant tenure review and conclude they should hire me instead of promoting the candidate. I take the job offer to the Dean and she gives me a raise. And so on. But what possible benefit do I get from giving a review to bunch of kids who may or may not end up in law teaching? I'm a rational economic actor. My time is valuable. There are opportunity costs entailed in responding to your request. "It is not from the benevolence of the butcher, the brewer, or the bakerthat we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages." So make it economically rational for me to respond affirmatively.

While there is no carrot on offer, there is an implied stick:

Again, we understand that you are busy and that our timeline is short. If you aren’t able to review on our timeline, we will in no way consider it against you, either in recommending future reviews or in considering your articles.

If I believe them, of course, the stick is ineffectual. But even if I don't believe them, the implied threat is pretty weak. Future law review boards probably won't remember that I turned this board down (will there be a black book handed down from generation to generation). Besides which, given how rarely Chicago publishes, how many in house articles they publish by Chicago faculty, and how many submissions they get per year, plus the inherent law review bias against private law, the odds of me getting an offer of publication from Chicago are essentially nil, whether I do the review or not.

And I find the promise not to retaliate somehow vaguely offensive. It sort of implies that I would fear the Chicago law review's retribution. In fact, I've managed to get along quite nicely for twenty-plus years without getting published in the Chicago law review. I think I can make it to retirement without doing so.

Indeed, if anybody has fear of retribution, it ought to be the editors with the chutzpah to pose the question. Not that I would in any "way consider it against" if they, say, applied for a teaching job at UCLA.

By the way, speaking of my twenty-odd years in legal academics without a Chicago law review publication, if 20 years worth of Chicago boards have rejected everything I've ever submitted to them, why does this board all of sudden think highly enough of my standing in the field to ask for a review? Recall that they "are inviting a select group of academics to comment on the scholarly merit and originality of select articles in their scholarly discipline." Shouldn't they be selecting people they've published? Or are they admitting that all those boards were wrong to reject all those articles of mine?

Back to the email one more time:

As you may know, the timetable for reading law review submissions is short, since law reviews across the country are simultaneously reading and making offers of publication on the same articles. We are thus asking for what we are aware is a quick turnaround.

In fact, they are asking for a reply in four days. FOUR days! At the start of the school year. When I presumably am finishing up my own article to send out to law reviews to be rejected by Chicago again. Yes, they apologize repeatedly in the email for the short time span, but saying you're sorry doesn't feed the proverbial bulldog.

If they had asked my advice, here's what I would have told them to do:

Identify the select group of faculty months ago.

Contact those faculty members months ago to invite them to become part of the "Universty of Chicago Law Review Distinguished Faculty Advisory Board." (Law professors love to have a title they can add to their c.v. Remember the saying: "Deans can't read but they can count." Every new resume line helps just that much.)

The realities of law review timelines may require short deadlines, but a short deadline to which one agreed months in advance would be much more tolerable than one that is sprung on one at the same time as the invitation.

Figure out a way to reward the reviewer. Here's one idea: Let the reviewer write a very short comment on the final article, which would be published by the Law Review (at least on the law review's online version).

In sum, this is one more straw on this old camel's back. As regular readers know, I'm sick and tired of the whole law review process. The chutzpah of elite law review editors, which I thought this letter once again illustrated, is a big reason I'm disgusted with it. As many of you know, that disgust in turn is a big part of the reason I've turned to self-publishing scholarship as Kindle eBooks. (See my earlier post Directors as Auctioneers: An Experiment in Self-Publishing Legal Scholarship.) If that experiment succeeds as I hope it will, nobody will ever have to worry about writing a review of my work for the Chicago law review. Of course, this blog post probably solved that problem anyway.

Comments

Chicago Law Review Chutzpah

I got an email from the University of Chicago law review yesterday, which I'm going to quote in pertinent part:

I’m writing to you today on behalf of the University of Chicago Law Review to solicit your help in a new initiative. The Law Review has recently made a provisional decision to join a number of our peer journals in incorporating faculty peer review into our article selection process. We are inviting a select group of academics to comment on the scholarly merit and originality of select articles in their scholarly discipline. The Articles Group will use these comments to supplement our discussion of articles under consideration for publication.

Either the student-edited format makes sense or it doesn't. The whole purpose of peer review is to get students OUT of the process, not to supplement a decision that would remain in the hands of second and third year law students. A pure peer review/edit system has several advantages. First, more informed and experienced decision makers should make better decisions. Second, one key function of peer review is to provide expert advice at a stage at which the authors can still tweak the paper. Hence, the advice should go directly from the reviewer to the author, rather than being mediated through students. Third, making the decision dependent on peer review provides a strong incentive for authors to heed the advice and to improve the paper. Giving students final say means the author is incented to make the students editors happy rather than the more knowledgeable reviewer. Finally, leaving the final decision in the hands of students means that the reviewer has less incentive to provide his/her best analysis, since his recommendations presumably will not be conclusive and may not even impact the final product. The proposed Chicago system being neither fish nor fowl, there is no reason to think it will combine the best attributes of peer and student journals. To the contrary, for the reasons just noted, I suspect it will combine their worst.

Back to the email:

Please don’t hesitate to let me know if you are unable to review today’s article, but would like to review for us in the future.

Why on earth would I ever want to review an article for them? To be sure, there are things one supposedly does for free for other law schools because they are for the good of the profession. Writing tenure letters springs to mind. Yet, while doing so is for the good of the profession, it can also be personally beneficial. If I write a tenure review letter for your tenure committee, the members of that committee will feel obliged to return the favor when I'm chairing our tenure committee and need outsider reviewers. Professors at other schools read my brilliant tenure review and conclude they should hire me instead of promoting the candidate. I take the job offer to the Dean and she gives me a raise. And so on. But what possible benefit do I get from giving a review to bunch of kids who may or may not end up in law teaching? I'm a rational economic actor. My time is valuable. There are opportunity costs entailed in responding to your request. "It is not from the benevolence of the butcher, the brewer, or the bakerthat we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages." So make it economically rational for me to respond affirmatively.

While there is no carrot on offer, there is an implied stick:

Again, we understand that you are busy and that our timeline is short. If you aren’t able to review on our timeline, we will in no way consider it against you, either in recommending future reviews or in considering your articles.

If I believe them, of course, the stick is ineffectual. But even if I don't believe them, the implied threat is pretty weak. Future law review boards probably won't remember that I turned this board down (will there be a black book handed down from generation to generation). Besides which, given how rarely Chicago publishes, how many in house articles they publish by Chicago faculty, and how many submissions they get per year, plus the inherent law review bias against private law, the odds of me getting an offer of publication from Chicago are essentially nil, whether I do the review or not.

And I find the promise not to retaliate somehow vaguely offensive. It sort of implies that I would fear the Chicago law review's retribution. In fact, I've managed to get along quite nicely for twenty-plus years without getting published in the Chicago law review. I think I can make it to retirement without doing so.

Indeed, if anybody has fear of retribution, it ought to be the editors with the chutzpah to pose the question. Not that I would in any "way consider it against" if they, say, applied for a teaching job at UCLA.

By the way, speaking of my twenty-odd years in legal academics without a Chicago law review publication, if 20 years worth of Chicago boards have rejected everything I've ever submitted to them, why does this board all of sudden think highly enough of my standing in the field to ask for a review? Recall that they "are inviting a select group of academics to comment on the scholarly merit and originality of select articles in their scholarly discipline." Shouldn't they be selecting people they've published? Or are they admitting that all those boards were wrong to reject all those articles of mine?

Back to the email one more time:

As you may know, the timetable for reading law review submissions is short, since law reviews across the country are simultaneously reading and making offers of publication on the same articles. We are thus asking for what we are aware is a quick turnaround.

In fact, they are asking for a reply in four days. FOUR days! At the start of the school year. When I presumably am finishing up my own article to send out to law reviews to be rejected by Chicago again. Yes, they apologize repeatedly in the email for the short time span, but saying you're sorry doesn't feed the proverbial bulldog.

If they had asked my advice, here's what I would have told them to do:

Identify the select group of faculty months ago.

Contact those faculty members months ago to invite them to become part of the "Universty of Chicago Law Review Distinguished Faculty Advisory Board." (Law professors love to have a title they can add to their c.v. Remember the saying: "Deans can't read but they can count." Every new resume line helps just that much.)

The realities of law review timelines may require short deadlines, but a short deadline to which one agreed months in advance would be much more tolerable than one that is sprung on one at the same time as the invitation.

Figure out a way to reward the reviewer. Here's one idea: Let the reviewer write a very short comment on the final article, which would be published by the Law Review (at least on the law review's online version).

In sum, this is one more straw on this old camel's back. As regular readers know, I'm sick and tired of the whole law review process. The chutzpah of elite law review editors, which I thought this letter once again illustrated, is a big reason I'm disgusted with it. As many of you know, that disgust in turn is a big part of the reason I've turned to self-publishing scholarship as Kindle eBooks. (See my earlier post Directors as Auctioneers: An Experiment in Self-Publishing Legal Scholarship.) If that experiment succeeds as I hope it will, nobody will ever have to worry about writing a review of my work for the Chicago law review. Of course, this blog post probably solved that problem anyway.